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Himachal Pradesh High Court · body

2014 DIGILAW 88 (HP)

State of H. P. v. Virender Kumar

2014-01-10

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. - Complaint is that learned Judicial Magistrate, 1st Class, Barsar, District Hamirpur, has erroneously acquitted the respondent, hereinafter referred to as "the accused", of the charge under Sections 354 and 323 of the Indian Penal Code, vide judgment dated 31.7.2007, passed in Criminal Case No.52-1-2006/34-II-2006. The impugned judgment, therefore, has been sought to be quashed and set aside on the grounds, inter alia, that the same is based on hypothesis, surmises and conjectures and passed in a slip-shod and perfunctory manner, without appreciating the evidence on record in its right perspective. Neither the statement of the complainant is appreciated properly nor the alleged contradictions in the statements of the witnesses mentioned in the impugned judgment explained as to how the same were fatal to the prosecution case. The Court below allegedly erred in disbelieving the recovery of shirt Ext.P1 and erroneously concluded that non-examination of PW Rita Devi, mother of the complainant and PW Sanjiv Kumar is fatal to the prosecution case. 2. Complainant Priyanka (PW2) is the daughter of PW-4 Vikram Singh. PW-3 Sunita Devi is her younger sister and PW-5 Onkar Singh, her real uncle. PW6 Rakesh Chand being the first cousin of PW-4 is also uncle of the complainant, in relation. 3. FIR Ext. PW2/A has been lodged at the instance of PW-2 Priyanka. The same bears her signatures and also that of her father Vikram Singh and uncle Onkar Singh. She claims that on 16.3.2006 around 8/8.15 p.m., when she was washing her hands and feet in the courtyard of the house, Bunty (accused Virender Kumar) came there from behind, gagged her mouth with her Dupatta and dragged her towards the road and made her lie down there. He pressed her neck and caught hold of her breasts, with a view to outrage her modesty and started behaving with her in an obscene manner. On raising alarm by her, Vikram Singh, Onkar Singh and Rita Devi, her father, uncle and mother respectively, came to the spot and on seeing them, the accused fled away. He pressed her neck and caught hold of her breasts, with a view to outrage her modesty and started behaving with her in an obscene manner. On raising alarm by her, Vikram Singh, Onkar Singh and Rita Devi, her father, uncle and mother respectively, came to the spot and on seeing them, the accused fled away. Subsequently, when her father and uncle went to the house of the accused to bring such incriminating behaviour on the part of the accused to the notice of his parents, he thrashed them with kicks and fisticuffs and thereby caused injuries to her father on his nose, face, teeth, elbow and stomach, whereas to her uncle Onkar Singh on his face and nose. 4. The FIR in this case was registered on the day of occurrence itself, however, the police seems to have conducted investigation on 18.3.2006, i.e. a day after the occurrence. During the course of investigation, besides associating the witnesses, named hereinabove and recording their statements, the police prepared the site plan Ext. PW9/A and also took into possession shirt Ext. P1 of PW-2 Priyanka, vide seizure memo Ext. PW2/A. On receipt of MLCs Ext. PW1/A and PW1/B with respect to the medical examination of PW-4 Vikram Singh and PW-5 Onkar Singh, report under Section 173 Cr. P.C. was filed against the accused in the Court. 5. Learned trial Magistrate, in view of the evidence collected by the police, has framed charge under Sections 354 and 323 of the Indian Penal Code against the accused. He, however, pleaded not guilty and rather claimed trial. Therefore, the prosecution in order to sustain the charge against the accused examined nine witnesses, in all. The material prosecution witnesses, however, are the complainant, her sister Sunita, father Vikram Singh and uncle Onkar Singh, hence, closely related to each other. 6. Learned trial Magistrate on analyzing the given facts and circumstance and also the evidence available on record, has arrived at a conclusion that the evidence contradictory in nature, has rendered the entire prosecution story doubtful and in his opinion no case was found to be made out against the accused. He has, therefore, been acquitted of the charge framed against him. 7. He has, therefore, been acquitted of the charge framed against him. 7. Shri Vivek Attri, learned Deputy Advocate General in support of the grounds urged in the memorandum of appeal, has argued that the evidence produced by the prosecution proves the commission of the offence by the accused beyond all reasonable doubt. The Court below is stated to have given undue weightage to minor contradictions in the statements of the prosecution witnesses, which according to learned Deputy Advocate General, are bound to occur on account of variety of reasons, such as social background of the witnesses, the strata of society to which they belong and the time gap between the occurrence and recording of their statements etc. Also that the cogent and reliable evidence produced by the prosecution has erroneously been brushed aside and to the contrary, the findings of acquittal are based on conjectures and surmises. 8. Learned defence counsel has, however, urged that the evidence available on record is not at-all sufficient to constitute the offence, the accused allegedly committed. She has also argued that the contradictions, as occurred in the prosecution evidence, are not minor and rather go to the very root of the prosecution case and as such, the evidence having come on record by way of the testimony of the witnesses, who are in close relations and interested in the success of the case, has rightly been brushed aside by learned trial Magistrate. It has, therefore, been urged that the impugned judgment suffers from no illegality or irregularity and as such deserves to be upheld. 9. Before coming to the reappraisal of the evidence on record, I would like to point out as to what constitutes the offence, punishable under Section 354 IPC in its legal parlance. 10. So far as the offence under Section 354 of the Code is concerned, intention to outrage the modesty of a woman or knowledge that the act of the accused would result in outraging her modesty, are the essential ingredients. The word "modesty" has not been defined in the Indian Penal Code, however, its meaning as per Oxford English Dictionary is "womanly propriety of behaviour". Legislature had used the word "modesty" for protection of an attribute which is peculiar to a woman, on account of her sex. Modesty, therefore, is an attribute of female sex and she possesses it irrespective of her age. Legislature had used the word "modesty" for protection of an attribute which is peculiar to a woman, on account of her sex. Modesty, therefore, is an attribute of female sex and she possesses it irrespective of her age. The offence, punishable under Section 354 of the Code, therefore, is not only in the interest of woman concerned, but in the interest of public morality also. The assault on a woman by using criminal force on her intentionally to outrage her modesty constitutes the commission of offence punishable under Section 354 of the Indian Penal Code. 11. Here is a case where an effort has been made to establish that the accused gagged the mouth of PW-2 and dragged her towards adjoining road around 8/3.15 p.m, at such a stage, when she was washing her hands and feet in the courtyard. Not only this, according to the prosecution, the accused made her lie down on the road, tore her shirt from the shoulder and started pressing her breasts and when she raised alarm, her father, mother and uncle arrived there and on seeing them, the accused fled away. When her parents visited the house of accused, to bring such act and conduct on his part to the notice of his parents, he thrashed them and inflicted injuries on their person. Whether it so happened or not, needs determination on reappraisal of the evidence available on record. Of course, it so finds recorded in the FIR Ext. PW2/A. In her own statement and also that of her sister PW3 Sunita Devi, father Vikram Singh (PW-4) and for that matter uncle Onkar Singh (PW-5), it has come that she was washing her hands and feet on the tap, which as per her own version, was in the courtyard, whereas as per that of her sister, father and uncle not in the courtyard, but below Prauli (eaves) of the roof of the house. No doubt in the map Ext. PW9/A also, tap has been shown in the courtyard, however, when witnesses PW3 Sunita Devi, PW4 Vikram Singh and PW5 Onkar Singh have stated in one voice that the tap exists below eaves of the house, the location as reflected in the spot map cannot be believed to be correct. No doubt in the map Ext. PW9/A also, tap has been shown in the courtyard, however, when witnesses PW3 Sunita Devi, PW4 Vikram Singh and PW5 Onkar Singh have stated in one voice that the tap exists below eaves of the house, the location as reflected in the spot map cannot be believed to be correct. Therefore, even if it is believed that she was washing hands and feet at a place adjoining to the door of the house at a place not far away therefrom, her testimony that the tap was at a distance of 15 metres from the house and the position qua that reflected in the spot map, cannot be believed to be true. When the width of the courtyard of the house of the complainant as per version of her father PW4 Vikram Singh is 30 feet, which is even admitted to be so by PW-2 and PW-5 also, the location as reflected in the spot map and disclosed by the complainant in her statement while in the witness box, cannot be believed to be correct. Therefore, it was not possible for the accused to have dragged her from such a close distance from the house, where admittedly besides her, five more persons, including her parents and sister were present at that time, more particularly when as per her own admission and that of PWs 3 to 5, their house is surrounded by other houses, including that of Balbir, Satya Devi and Sanjeev etc, as is even shown in the spot map Ext. PW9/A also. 12. Interestingly enough, as per own version of the complainant, she was dragged by the accused upto a distance of 200 meters. Her sister PW2 Sunita has, however, categorically stated that she had seen the complainant with the accused at a distance of 5-7 metres from the house. PW-4 Vikram Singh also admits such distance to be about 5 metres from the house. Moreover, the complainant, who was 19 years of age at the relevant time, could have not been dragged by the accused at all by applying force from one hand, by any stretch of imagination, even if it is believed that her mouth was gagged by him with another hand. If it is so, while being dragged by the accused by using force, she could have resisted and raised alarm. 13. If it is so, while being dragged by the accused by using force, she could have resisted and raised alarm. 13. A glaring discrepancy, which goes to the very root of the prosecution case, is that it is PW3 Sunita, who came out at her own when the complainant did not come back for a pretty long time. It is then she, who heard shrieks (hoon hoon ki awaj-indistinct sound) of the complainant from a place of 5-7 metres from the house. 14. PW3 Sunita Devi states that she herself noticed the accused pressing the breasts of complainant and tearing her shirt and that on noticing her presence there, the accused fled away. The complainant also states that on seeing her sister PW3 Sunita Devi, the accused fled away. PW3 Sunita Devi, however, in the same breath states that on hearing shrieks of the complainant, she went inside the house and informed her parents in this behalf. PW4 Vikram Singh, father of the complainant, no doubt states that the accused had gagged the mouth of the complainant and dragged her and also pressed her breasts, however, in the same breath states that he did not witness anything of the sort and rather was informed about it by his daughter, the complainant. He rather admits that his evidence is hearsay and he had not seen anything personally. 15. PW-5 Onkar Singh tells us that he came out of his house on hearing hue and cry from the house of his brother Vikram Singh (PW4) and found his entire family in the courtyard. He was told about the accused having tried to outrage the modesty of the complainant. He also admits that he did not witness anything personally and rather was apprised about the occurrence by PW4 Vikram Singh. Similar is the testimony of PW6 Rakesh Chand. 16. Adverting to the alleged beatings administered by the accused to PW4 and PW5, the only evidence in this regard, as has come on record, is their own testimony, as the complainant PW2 and her sister PW3 both have stated that they did not accompany their parents and uncle to the house of the accused nor witnessed the beatings having been given to them by the accused. True it is that the testimony of the injured witness should not be discarded, however, the present seems to be an exceptional case for the reason that on coming to know about the accused in the company of the complainant that too during odd hours it was somehow natural for her father and uncle enraged and it is they who were aggressor and assaulted the accused and seems to have received injuries on their person in the scuffle with the accused. Therefore, the stand of the accused in his defence seems to be nearer to the factual position and it is difficult to believe that the father and uncle of the complainant, both were thrashed by the accused. 17. The real genesis of the occurrence in the house of the accused is also not established, for the reason that PW6 Rakesh Chand has introduced a new story while stating that about 20 boys were present in the house of the accused when they reached there. As per the prosecution story, they went to the house of the complainant twice during that night, however, PW-5 has stated that they went only for once to the house of the accused during that night. 18. The testimony of the complainant and her sister PW-3 tells us that their family was not in visiting terms with that of the accused. According to them, even in thick and thin, both the families were neither on visiting terms nor visiting the house of each other. No doubt, as per the version of PW-5, they stopped going to the house of the accused only after this incident, however, in view of the evidence discussed hereinabove, there emerges two possible views qua the enmity between the two families and as in the criminal administration of justice, the view favourable to the accused should be believed to be true, therefore, on this score also he is entitled to the benefit of doubt. 19. The evidence, discussed hereinabove, therefore, makes it crystal clear that the prosecution case right from the very beginning suffers from material contradictions, which renders the same highly doubtful. 20. Much has been said on behalf of the prosecution qua recovery of shirt Ext. P1 vide seizure memo. Ext. 19. The evidence, discussed hereinabove, therefore, makes it crystal clear that the prosecution case right from the very beginning suffers from material contradictions, which renders the same highly doubtful. 20. Much has been said on behalf of the prosecution qua recovery of shirt Ext. P1 vide seizure memo. Ext. PW2/A and it is argued on the basis thereof that the accused tore the shirt of the complainant to outrage her modesty, however, again of no consequence for the reason that the shirt was recovered after two days of the occurrence on 18.3.2006 and as such, the possibility of the same having been tampered with in the intervening period cannot be ruled out. 21. Learned Deputy Advocate General has placed reliance on the judgment of the Apex court in Aman Kumar v. State of Haryana, 2004) 4 SCC 379. However, the contradictions/discrepancies as noticed hereinabove, are irreconcilable, as were in the case before the Apex Court and taking such discrepancies fatal to the prosecution case, the benefit of doubt was given to the accused, and ultimately he was acquitted. Therefore, the law laid down by the Apex Court in the judgment supra is of no help to the case of the prosecution. Again, there cannot be any dispute qua the law laid down by the Honble Apex Court in Shekara v. State of Karnataka, (2009) 14 SCC 76 . However, the present is not a case where the prosecution has successfully pleaded and proved the commission of offence by the accused, punishable under Section 354 IPC. The law laid down by the Apex Court in State of Rajasthan v. Kalki, (1981) 2 SCC 752 , Shyamlal Ghosh v. State of West Bengal, (2012) 7 SCC 646 and Krishna Mochi v. State of Bihar, (2002) 2 SCC 81, is also not applicable in the given facts and circumstances of this case, for the reason that the testimony of the witnesses, who being sister, father and uncle of the complainant are closely related, inspires no confidence, hence cannot be relied upon. 22. 22. No doubt the Apex Court in State of UP v. Chhotey Lal, (2011) 2 SCC 550 , has held that a young unmarried woman will not put her reputation in peril by alleging falsely about a sexual assault , however, in the present case, the occurrence has not taken place in the manner as claimed by the prosecution and as such the present seems to be an exceptional case. Therefore, the law laid down in this judgment is also of no help to the prosecution. 23. In view of what has been said hereinabove, the Court below has not committed either any illegality or irregularity while acquitting the accused of the charge framed against him. This appeal, therefore, being devoid of any merit, is dismissed. The personal bonds furnished by the accused shall stand cancelled and the surety discharged Appeal dismissed.